Ram Achal and Others vs State of U.P.

Ranjana Pandya, J.

This revision has been preferred against the judgment and order passed on 29.7.1987 by Vth Additional Sessions Judge, Varanasi in Criminal Appeal No. 21/1986 affirming the conviction but reducing the sentence of all the accused under Section 323/34, I.P.C. from six months R.I. to two months R.I. and reducing sentence of Ram Achal from one year R.I. to 6 months R.I. under Section 325 I.P.C. passed by VIIIth Munsif Magistrate, Varanasi in Criminal Case No. 686/1985 and further sentencing to 6 months R.I. under Section 323/34, I.P.C. and sentencing Ram Achal to one year R.I. under Section 325, I.P.C. Brief facts of the case is that the case was registered as a non-cognizable case on 26.8.1983 at 21 : 45 hrs. at P.S. Mirzamurad on oral report of the informant injured Kharpattu. Prosecution case in brief is that a case against the informant and the accused was in progress in the consolidation court in which case 26.8.1983 was fixed. The complainant and accused Ram Achal had gone to that court. On the same day the revisionist No. 1 threatened to assault the complainant, if he did not take a date in that case. On the same day at about 8:00 p.m. when the informant was at his door Ram Achal, Phool Chand, Deonath and Shyama Charan that hurling abuses and began to assault the complainant with lathis, fists and kicks. On his alarm his brother Kanhaiya Lal and the witness Rajpat reached there to save him resulting in injuries to Kharpattu and Rajpat. The witness Rama Shankar and Pyare Lal had seen this occurrence and the oral report of this occurrence was lodged on the same day on 21:15 hrs. The injured Kharpattu and Rajpat were medically examined on the next day on 12:40 Noon at S.S.P.G. Hospital, Varanasi and injuries were found on the body of both the injured. X-ray was also done which revealed that Rajpat sustained fracture thus the case was lodged under Section 325 I.P.C. vide G.D. Exhibit Ka-8. After investigation, Investigating Officer submitted charge-sheet against the revisionist under Sections 323, 325, 504, 506 and 312, I.P.C. Charges were framed against the accused persons who denied the charges and claimed trial.

In support of the prosecution case P.W.1, informant injured Kharpattu was examined, P.W.2 was Pyara Lal, who is said to be eyewitness, P.W. 3 Rajpat was also an eye-witness, P.W. 4 was S.I. Sanjay Bishnoi, Dr. S.K. Singh was examined as P.W. 5, Dr. M.N. Chaturvedi, Radiologist was examined as P.W. 6 and Constable Chhedi Ram was examined as P.W.7. The accused persons were examined under Section 313, Cr.P.C.

The defence witness D.W. 1 Dr. C. Singh has proved the injuries of revisionist Ram Achal and Phool Chand. Learned lower court after perusal of all the evidences placed before it found the accused persons guilty and sentenced accused Ram Achal, Deonath, Phool Chand and Shyama Charan under Section 323/34, I.P.C. and accused Ram Achal under Section 325, I.P.C. sentencing all the four revisionist for six months R.I. under Section 323/34, I.P.C. and sentence of Ram Achal to undergo one year R.I. under Section 325 I.P.C, to all the accused persons were guilty for the charges punishable under Sections 504 and 506, I.P.C.

Aggrieved by this order, the revisionists preferred criminal appeal No. 21/1986 which was dismissed and conviction was upheld. But the sentence under Section 323/34 was reduced to two months R.I. and the sentence of Ram Achal under Section 325 was reduced to six months R.I. Against this appellate order, aggrieved the accused revisionists have come up in revision.

None responded on behalf of the revisionists.

Heard learned A.G.A. and perused the record.

I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law, or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence.

As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.

In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon''ble Supreme Court in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , has held that the High Court while hearing revisions does not work as a appellate court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.

In Munna Devi Vs. State of Rajasthan and anr, , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do.

Hon''ble the Apex Court in State of Karnataka Vs. Appa Balu Ingale and others, , has held that generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner. Hon''ble the Apex Court in Jagannath Choudhary and Others Vs. Ramayan Singh and Another, , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice.

Learned court below have considered all aspects of the matter and have concluded that there were no laches on the part of the prosecution and the case was proved beyond doubt.

Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provision of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force. The provisions of Section 360 of the Code are wholly inapplicable.

Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows :--

"3. Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or Section 4."

Thus, it was the duty of the trial court and the appellate court to consider about granting of probation to the accused persons which was not done.

Section 4 of the Probation of Offenders Act reads as follows :

"4. Power of court to release certain offenders on probation of good conduct-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour :

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

Thus, I find no illegality, impropriety or irregularity in the order under revision. The revision is liable to be dismissed.

The revision is, accordingly, dismissed with the following modification. The conviction is upheld. The revisionists shall get the benefit of Section 4 of the Probation of Offenders Act and in stead of sentencing them, at once, they shall file two bonds to the tune of ` 20,000 coupled with personal bonds stating that they shall keep peace and not commit any offence during the period of one year. If there is breach of any of the aforesaid conditions, they will be subjected to undergo sentence before the Magistrate on notice as per the Rules. The aforesaid bonds be filed by the police personnel within two months from the date of judgment.